Pub. Citizen, Inc. v. U.S. Dep't of Educ.
388 F. Supp. 3d 29
D.C. Cir.2019Background
- Public Citizen submitted a FOIA request seeking communications and policies related to breakout sessions and invitee selection for DOE’s October 2, 2017 "Cutting the Red Tape" event; DOE initially failed to provide a timely response and litigation ensued.
- After suit, DOE produced 447 pages, but Plaintiff challenged redactions/withholdings on 13 pages; DOE invoked FOIA Exemption 5 (attorney-client and deliberative process privileges) (some Exemption 6 redactions were made but not challenged).
- The district court reviewed the contested records in camera and ordered limited supplemental explanation from DOE about two documents (OS 314 and OCO 8).
- DOE’s declarations (primarily Jill Siegelbaum) and Vaughn index describe the redacted material as intra-agency deliberations and attorney–client communications about invitee lists, event focus, and responses to Executive Office guidance.
- The court found redactions were either pre-decisional/deliberative or confidential attorney–client communications and that segregable nonexempt information was not reasonably releasable.
- Court granted DOE’s motion for summary judgment and denied Public Citizen’s cross-motion, upholding Exemption 5 redactions (attorney-client and deliberative process privileges).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether redactions on 13 pages fall under FOIA Exemption 5 | Redactions are improper; Exemption 5 does not apply to these portions | Redactions reflect privileged attorney–client communications and pre‑decisional, deliberative material exempt under Exemption 5 | Court held redactions are proper under Exemption 5 (attorney‑client and deliberative process) |
| Whether email subject lines and attorney identities are protected | Subject lines and attorney names should be disclosed; identities not inherently privileged | Subject lines reveal clients’ motive and the substance of legal advice; attorney identities would reveal privileged information and chill communications | Court held subject lines and attorney names properly withheld under attorney‑client privilege and deliberative process privilege |
| Whether post‑decision emails recounting deliberations are exempt | Plaintiff argued some redactions appeared post‑decisional and thus not protected | DOE argued post‑decision communications that recount pre‑decisional deliberations remain protected when disclosure would reveal deliberative content | Court held post‑decision recounting of pre‑decisional deliberations may be exempt; specific redactions were protected |
| Whether DOE properly segregated non‑exempt information | Plaintiff suggested more could be released | DOE declared nonexempt portions were inextricably intertwined with exempt material and not reasonably segregable | Court accepted DOE’s declarations and found no reasonably segregable nonexempt information |
Key Cases Cited
- Dep’t of the Air Force v. Rose, 425 U.S. 352 (U.S.) (FOIA’s disclosure purpose and exemptions narrow construction)
- Milner v. Dep’t of Navy, 562 U.S. 562 (U.S.) (FOIA exemptions are exclusive and construed narrowly)
- Nat’l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132 (U.S.) (Exemption 5 protects documents normally privileged in civil discovery)
- Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir.) (government attorney–client privilege principles)
- Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242 (D.C. Cir.) (deliberative process privilege protects pre‑decisional, deliberative communications)
- Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir.) (Exemption 5 covers attorney‑client, work‑product, and deliberative process materials)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S.) (importance of confidentiality for full and frank attorney–client communications)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir.) (presumption of good faith for agency affidavits)